At The Heart of Anti-Love Jihad Law Is A Deep Opposition to Inter-Faith or Perhaps Just Hindu Girl-Muslim Boy Marriages
By
Jayna Kothari
December
18, 2020
In 1967,
when Richard Loving challenged the ban on inter-racial marriages in the State
of Virginia, the United States Supreme Court stated in Loving v. Virginia,
“Under our Constitution, the freedom to marry, or not marry, a person of
another race resides with the individual, and cannot be infringed by the
State…We have consistently denied the constitutionality of measures which
restrict the rights of citizens on account of race. There can be no doubt that
restricting the freedom to marry solely because of racial classifications
violates the central meaning of the Equal Protection Clause.”
Pinky alleges she suffered a miscarriage | Photo: Praveen Jain | ThePrint
When we were on our way, we were stopped by a group of
Bajrang Dal people. They asked me my name and then started abusing me. They
called our marriage love jihad and dragged us to the police station.
“I told them that I married out of my own will and I
was pregnant, but they did not listen. They kept abusing me and my husband and
pushed and thrashed me when I resisted their attempt to report us to the
police,” she added.
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A lot has
been written about the new Uttar Pradesh Prohibition of Unlawful Conversion of
Religion Ordinance 2020. Most of it has been around the law being a violation
of an individual’s right to marry a person of one’s choice and being
restrictive of the fundamental right to life, autonomy and privacy. It is
certainly all of it. In addition, I argue that this ordinance, which is nothing
less than a draconian law, is a serious violation of the right to equality
based on religion.
The UP
ordinance prohibits any religious conversion due to coercion, force, undue
influence, allurement, fraud or by marriage and makes such a marriage liable to
be declared void. It also makes such an act of conversion a non-bailable
criminal offence.
How is this
a violation of the right to equality one might ask? The law would apply to
people of all religions equally and would ban any kind of religious conversions
for marriage. Merely because a law applies to persons of all religions, would
not make the law fulfil the guarantee on equality. In Loving v. Virginia, too,
merely because the law banned interracial marriages by persons of all races,
the law was not held to be equal. The Uttar Pradesh ordinance violates the
constitutional guarantee of equality because making religious conversions the
sole ground for terming the marriage as void or for imposing the onerous
requirements that parties in an inter-faith marriage have to comply with — such
as giving prior notice of conversion and a post-conversion notice of
declaration — is discrimination on the ground of religion. Our equality
guarantees in the Constitution demand that all persons have equal protection of
the law under Article 14. This goes together with the guarantee of
non-discrimination under Article 15 which mandates that the state shall not
discriminate against any citizen on grounds only of religion, race, caste, sex,
place of birth or any of them. Imposing such restrictions on marriage only on
the ground of religion amounts to discrimination and a violation of the right to
equality.
Our
equality jurisprudence also requires that the state can make separate
classification if such classification has a reasonable nexus with the purpose
of the law. Hence, what is the purpose of such a law by the UP government?
There is no data produced by the state government on any harm from inter-faith
marriages. In fact, the percentage of inter-religious marriages in the country
is extremely minuscule. There has been no census data on the numbers of
inter-faith marriages, but an analysis of “India Human Development Survey data,
2005” — a survey of 41,554 households in 1,503 villages and 971 urban
neighbourhoods across India jointly organised by the National Council of
Applied Economic Research — showed that only 2.21 per cent of all married women
between the age of 15-49 had married outside their religion. This is an
extremely small number and there is no empirical data whatsoever on harm, if
any, resulting from inter-faith marriages after conversion.
A common
question usually asked by supporters of the ordinance is that if people really
love each other, what is the need to change their faith? They can get married
under the Special Marriage Act 1954. This presumes that the Special Marriage
Act is a law that makes it easy for couples from different personal laws to get
married. Sadly, that is not so. It is, in fact, far more onerous than getting
married under one’s personal laws. The Special Marriage Act has a requirement
for putting up a public notice for 30 days before a couple is able to register
their marriage. When parties are from different faiths, communities or castes,
such a public notice can be a great source of danger and harm from their family
members and the only option would be for one of the persons to convert to the
religion of the other and get married. Curiously, therefore, most of our
personal laws make it far easier to convert and get married. This requirement
of a 30-day public notice under the Special Marriage Act has been challenged in
multiple petitions before the Delhi High Court and the Supreme Court. Despite
this, similar and more onerous requirements of an application to the district
magistrate with a 60-day public notice and a police enquiry before conversion
for marriage is mandated under the UP ordinance. This will ensure that neither
conversion nor marriage will take place.
At the
heart of this ordinance is a deep opposition to inter-faith marriages and the
need to control women and girls under the garb of protecting them from being
coerced into forced conversions by marriage. This deep-rooted opposition to
inter-faith marriage is comparable to a similar deep-rooted opposition to
inter-caste marriage, in that both stem from historical prejudices between
specific communities. Recognising this, during the drafting of our Constitution,
some members of the Sub-Committee on Fundamental Rights, especially the women
members Rajkumari Amrit Kaur and Hansa Jivraj Mehta, advocated for the
inclusion of inter-faith marriage as a fundamental right. They wanted to
introduce a constitutional provision to require the state to remove any
impediments to inter-faith marriages, so that the social stigma against such
marriages is removed and couples who wish to enter into inter-faith marriages
are enabled and protected. How far we have come from that position today in
2020.
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Jayna
Kothari is a Bengaluru-based senior advocate and executive director of Centre
for Law & Policy Research.
Original
Headline: UP anti-conversion law amounts
to discrimination and a violation of the right to equality
Source: The Indian Express
URL: https://newageislam.com/islam-politics/at-heart-anti-love-jihad/d/123802
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